Citation Nr: 1624370	
Decision Date: 06/17/16    Archive Date: 06/29/16

DOCKET NO.  13-07 529	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to service connection for sleep apnea.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran had active service from October 1965 to October 1967.

This appeal comes before the Board of Veterans' Appeals (Board) from a December 2010 rating decision by the Detroit, Michigan Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for sleep apnea.

In February 2016, the Veteran and his wife testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). The Veteran's claims file contains a transcript of that hearing.


FINDING OF FACT

Current sleep apnea is related to service. 


CONCLUSION OF LAW

Sleep apnea was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2014). The Board is granting the benefit sought on appeal. Therefore, it is not necessary to discuss further VA's duties to assist the Veteran in substantiating the claim.

The Veteran contends that he has sleep apnea that began during service, or was caused or aggravated by his service-connected disorders, specifically, his posttraumatic stress disorder (PTSD) and/or his diabetes.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The United States Court of Appeals for Veterans Claims (Court) has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2015). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310(b).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Veteran's service included active duty in Vietnam. He claimed and the RO established service connection for PTSD and for type II diabetes mellitus. His service medical records do not reflect any complaints or findings of sleep apnea or other sleep or respiratory problems. Post-service medical records show that he has sleep apnea. In November 2003, he saw a private physician, a sleep specialist, to address snoring, periods of apnea, and awakening at night gasping for air. The physician's impression was possible obstructive apnea. Notes of private treatment in March 2007, and of VA treatment from 2009 forward, reflect ongoing treatment for obstructive sleep apnea.

The Veteran's diabetes, PTSD, and sleep apnea are each documented in VA treatment records from 2009 forward. In those treatment records, he reported that a history of mental and emotional symptoms, including nightmares and difficulty sleeping, beginning after traumatic experiences during service. He also related that he frequently awakened at night and could not get back to sleep, and that he often felt tired during the day.

In August 2009, the Veteran submitted a claim for service connection for sleep apnea. He indicated that he began to experience the symptoms of the disorder during service, and that the symptoms continued thereafter. He stated that he did not know, however, what caused the symptoms, until after service, when a clinician diagnosed sleep apnea.

In VA treatment in October 2009, the Veteran reported that about ten years earlier he had been diagnosed with obstructive sleep apnea. He indicated that he had used a CPAP machine since then.

In October 2009, the Veteran's wife wrote that she and the Veteran started dating before he entered service, and that they married after he was separated from service. She stated that he was changed in several ways after service. She related that he snored very loudly and stopped breathing while he was sleeping. She indicated that presently this was treated with a CPAP machine. She also discussed behavioral and mood changes that she observed after his service.

In October 2009, the Veteran's sister, A. M. B., wrote that the Veteran was gentle and friendly before service, and very moody and depressed after service. She stated that during family vacations she noted that he stopped breathing while sleeping, snored very loudly, and, occasionally, had outbursts of screaming in his sleep.

In a March 2010 letter, the Veteran's wife added that before service he did not snore or have breathing problems. She stated that she first observed him to have such issues during his service, when he was home on leave. At that time, she indicated, at night he had frequent episodes of stopping breathing and seeming as though he was choking to death. She stated that those symptoms were much worse when he returned home after service. She indicated that during and soon after his service she and he did not know what to do about those symptoms then. She reported that later he was diagnosed with sleep apnea, and that a CPAP machine helped with the symptoms.

VA medical records from 2010 and 2011 reflect ongoing treatment of the Veteran for sleep apnea. In statements received in August and September 2011, he contended that his sleep apnea is secondary to his PTSD and his diabetes. He asserted that sleep apnea could be caused by PTSD and by diabetes.

On VA examination in October 2012, the Veteran reported that for years he awakened gasping at night, his wife witnessed him snoring and having apneic periods, and he awakened feeling unrested, and felt sleepy and fatigued during the day. He indicated that eventually, in 1984, he was diagnosed with obstructive sleep apnea in 1984, and that he had used a CPAP machine since then. He also related a many year history of nightmares and irritability, and a diagnosis of PTSD in approximately 2005. He indicated that he had been on medication for diabetes for ten years. The examiner expressed the opinion that it is less likely than not that the Veteran's sleep apnea is proximately due to or the result of his PTSD. He noted that the Veteran was diagnosed with sleep apnea before he was diagnosed with PTSD.

In a March 2013 statement, the Veteran indicated that he experienced symptoms of sleep apnea since separation from service, but did not realize the nature of the disorder until a physician told him to have it checked. On VA examination in May 2013, the Veteran indicated that numbness in his lower extremities related to his diabetes did not awaken him at night.

In the February 2016 Board hearing, the Veteran reported that before he was in service he did not notice any sleep problems or problems with breathing during sleep. He stated that during service, while he was in Vietnam, he began waking up at night, gasping for air. He indicated that during service he did not understand those symptoms, and did not seek treatment for them. The Veteran's wife indicated that she and he dated before he was in service, and married less than a year after his separation from service. She reported that in the months following service she observed him awakening at night, gasping and screaming. She stated that it was frightening, and that a couple of times she took him to the hospital, where they indicated that he might be having panic attacks. She related that they did not diagnose sleep apnea at that time. The Veteran indicated that he was not diagnosed with sleep apnea until about 1984, in private treatment. He stated that he experienced the symptoms from service forward, however. Similarly, he noted, his PTSD was not diagnosed until after 2000, but beginning in service and continuing thereafter he experienced symptoms such as nightmares that were the basis of the eventual PTSD diagnosis. The Veteran's wife reported that, from as early as directly after service, he had symptoms of fatigue and irritability. She asserted that those symptoms possibly were relatable to his sleep apnea and his PTSD, both of which were not diagnosed until years later.

In a February 2016 statement, the Veteran's sister, Ms. B., indicated that she is a registered respiratory therapist. She wrote that, from working with the Veteran, she formed the opinion that his PTSD is the probable cause of his sleep disorder.

In March 2016, private physician J. A. P., M.D., indicated that the Veteran has obstructive sleep apnea and uses a CPAP nightly. Dr. P. expressed the opinion that the Veteran's obstructive sleep apnea is associated with his service in Vietnam.

The Veteran and his wife each have reported that that he had breathing problems at night that began during service, and continued immediately after service and thereafter. Each of them was and is in a position to notice, describe, and recall those symptoms. Their accounts thus are persuasive, and are sufficient to establish a history of sleep apnea symptoms during service and continuing after service. That history is consistent with the claim that the sleep apnea formally diagnosed years after his service is a continuation of the symptoms that he experienced and she observed during his service period. The Board therefore grants service connection for his sleep apnea as incurred in service.


ORDER

Entitlement to service connection for sleep apnea is granted.




____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs